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Facts & Myths: Getting Married in the U.S. After Entry on a Tourist Visa

A question that I am asked over and over again is whether a person who enters the U.S. on a tourist visa may get married while in the U.S. This question generally arises where the person who entered the country on the tourist visa desires to marry a U.S. citizen and then apply for adjustment of status. As is often the case with U.S. immigration law, there is a lot of confusion and misinformation about this issue. This confusion and misinformation is made worse by the fact that some of this false information is posted or given by attorneys. For this reason, it is very important that you do not rely on information you find online and should always consult with an immigration attorney. I would be especially weary of information posted online that does not include a citation for the legal authority supporting the statements. Furthermore, immigration law and policy changes regularly. Something that was posted 6 months ago may have been accurate and correct when it was posted but may not longer be accurate. The visa waiver program issue discussed in this article is a perfect example of this.

This week I was asked this question at least three times so I decided to post an article about it to clarify these issues.

Can a person who enters the U.S. on a tourist visa get married?

The short answer is yes.

There is no law or regulation that prevents a person who enters the U.S. on a tourist visa from getting married. In fact, coming to the U.S. to marry a U.S. citizen on a tourist visa is specifically allowed as long as the non-immigrant departs the U.S. after the marriage takes place and within his or her authorized stay. The Foreign Affairs Manual or FAM which is a government manual that provides the guidelines and procedures for consular officials who issue visa provides that:

An alien proceeding to the United States to marry a U.S. citizen is classifiable K-1 as a nonimmigrant under INA 101(a)(15)(K). (See 22 CFR 41.81.) The fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) may, however, be classified as a B-2 visitor if you are satisfied that the fiancé(e) intends to return to a residence abroad soon after the marriage. A B-2 visa may also be issued to an alien coming to the United States:

(1) Simply to meet the family of his or her fiancé;

(2) To become engaged;

(3) To make arrangements for the wedding; or

(4) To renew a relationship with the prospective spouse.

9 FAM 41.31 N14.1-1

While in theory a visitor's visa may be issued for the purposes of coming to the U.S. to marry a U.S. citizen it is very uncommon for a B1 visa to be issued for this purpose. The reason for this is that it is very hard to convince the consular official the the B1 applicant will in fact return after the marriage takes place.

Can a person who enters the U.S. on a tourist visa and then marries a U.S. citizen adjust status to lawful permanent residency?

The short answer is yes.

A person who is inspected and lawfully admitted to the U.S. on a tourist visa may marry a U.S. citizen and then file an application to adjust his or her status to that of a lawful permanent resident.

The concern with this relates to the requirement that one cannot enter the U.S. on a non-immigrant visa if he or she has the intent to immigrate at the time of entry. What this means is that it is unlawful for a person to obtain a non-immigrant visa with the intent of using it to enter the U.S. and take advantage of the expedited adjustment of status procedures. However, if a person enters the U.S. on a tourist visa with no preconceived intent to immigrate and then AFTER he enters decides he to marry a U.S. citizen and immigrate to the U.S. it is allowable. In summary it is lawful to enter the U.S. with no intent to immigrate and then change your mind but you can't enter the U.S. on a tourist visa with the intent to immigrate at the time of entry.

How long do I have to wait until after I enter the U.S. on a tourist visa to get married?

Many people mistakenly believe that there is a specified amount of time one must wait before getting married to a U.S. citizen after entering the U.S. on a tourist visa. This mistaken belief arises out of the misapplication of what is known as the "30/60 Rule". The 30/60 rule can be found in the Foreign Affairs Manual 9 FAM 40.63. This is a rule that consular officials apply when adjudicating visa applications and it is not applicable to adjustment of status cases. However, some USCIS adjudicators may rely upon it in making a determination of whether or not a person who entered on a tourist visa and very soon after was married committed immigration fraud. In summary, the 30/60 rule states that there is a presumption of fraud when a person who, within 30 days of his entry to the U.S.: 1) Seeks or obtains employment; 2) Enrolls in school; 3) Marries; or 4) Engages in any other conduct that would require a change of status has. When a person engages in any of these activities after a period of 30 days but less than 60 days there is no presumption of fraud but it may be used as evidence of fraud which can be rebutted by the applicant.

The important thing to remember here is that this is a Department of State rule that applies to persons who are applying for visa abroad. It is not a USCIS rule that applies in the context of adjustment of status.

Although the 30/60 day rule does not apply in the context of adjustment of status, there is a high risk that someone who enters the U.S. on a tourist visa and then marries within 30 days would raise some serious red flags during the adjustment of status process which could result in a finding of immigration fraud. While it may be safest to treat the 30/60 day rule as though it applies in the context of adjustment of status, this is not technically correct and the better course of action is to consult with an immigration attorney who can evaluate the particular facts and circumstances of your case and advise you accordingly.

Can a person who enters the U.S. on a tourist visa but overstays the time allowed on his I-94 apply for adjustment of status based on marriage to a U.S. citizen?

Yes.

The general rule in adjustment of status cases is that the applicant must be in lawful status in order to adjust his or her status. However, there is a very large exception for immediate relatives of U.S. citizens. Immediate relatives of U.S. citizens may adjust their status even if they are out of status (or overstayed their visas). This is true even if the person on the tourist visa overstays the authorized period of stay for 20 years. It is important to note that an "immediate relative" of a U.S. citizen only includes the following persons:

  • Spouses of citizens
  • Parents of citizens
  • Children of citizens (*Children must be under 21 years of age and unmarried. Step-children of U.S. citizens also qualify as immediate relatives as long as the marital relationship that created the parent/step-child relationship was created before the child's 18th birthday.)

If you are not an immediate relative of a U.S. citizen and are not in lawful status you DO NOT qualify for adjustment of status.

What if I entered the country on the Visa Waiver Program (VWP). Am I eligible for adjustment of status based on marriage to a U.S. citizen?

Yes.

The general rule for adjustment of status and persons who entered the U.S. on the VWP is that you cannot adjust status. However, there is another exception for immediate relatives of U.S. citizens. Immediate relatives of U.S. citizens can apply for adjustment of status even if they entered the U.S. on the visa waiver program.

What if I entered the U.S. on the VWP and overstayed my visa, do I qualify for adjustment of status based on marriage to a U.S. citizen?

Yes.

This is another area of great confusion and misinformation. However, this was caused, in part, by the misapplication or inconsistent application of the law by various USCIS offices.

It was the longstanding policy of the USCIS and the Department of Justice to allow persons who entered the U.S. on the VWP to adjust their status pursuant to the discretion afforded it under section 245 of the Immigration and Nationality Act. This policy, I believe, was the most consistent interpretation of U.S. law. However, sometime in the last two or three years certain USCIS District Offices began denying AOS applications based on marriage to a U.S. citizen filed by applicants who had entered the U.S. on the VWP but overstayed. This 180 degree turn in policy was not consistent across the U.S. nor was there any formal policy change which caused greater uncertainty and confusion for prospective AOS applicants and attorneys alike.

Fortunately, the USCIS recently addressed the issue directly during one of it's meetings with the American Immigration Lawyers Association. In the most recent documentation of this that I am aware of (dated October 21, 2011), the USCIS confirms that it will not longer deny AOS applications filed by persons who entered on the VWP and overstayed their visa as long as the application is otherwise approvable. I have attached a copy of this document.

AttachmentSize
USCISVWP.pdf248.38 KB
Phil

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